Article 34 Succession Regulation explains when a third country refers back to Austria and Austrian succession law may apply.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
When the Succession Regulation leads an international estate to the law of a third country, that country’s private international law may also have to be examined. If its conflict rules refer to Austria, Austrian succession law may become applicable again. Article 34 of the Succession Regulation sets clear conditions and exclusions for this process.
The reference back concerns the law applicable to succession. It does not by itself determine which court has jurisdiction, how a foreign will is formally accepted or how Austrian real property is registered. Those questions require separate treatment. Our articles on foreign inheritance contracts and authentic instruments and foreign wills in Austria address those neighbouring issues.
This short orientation shows which reference under Article 34 Succession Regulation needs further review.
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Trace the reference and then check the exclusions in Article 34(2) Succession Regulation.
If the law of the third country designated under the Succession Regulation refers back to Austrian law, Austrian succession law may become applicable. Before reaching that conclusion, check whether the reference arose through one of the legal systems listed in Article 34(2) of the Succession Regulation.
Keep the foreign conflict rule, its interpretation and the specific reference to Austria together with the estate documents.
Article 34(1)(a) of the Succession Regulation also covers a reference back or onward to the law of a Member State. That Member State may be Austria, but it does not have to be. The decisive points are the actual reference in the third-country law and the law initially designated by the Succession Regulation.
The review concerns succession on death. Jurisdiction, the acceptance of an instrument and registration issues must be assessed separately.
If the first third-country law refers to another third country, Article 34(1)(b) of the Succession Regulation takes that onward reference into account only if the second third country would apply its own law. The review therefore does not end with the first foreign statute.
Only once this reference path is supported and no exclusion under Article 34(2) applies can the applicable succession law be determined reliably.
An unclear description of foreign law is not enough to determine the applicable succession law. The relevant conflict rule of the third country, its interpretation and its reference to Austria, another Member State or another third country must be identified.
Until then, the Austrian connection should remain an open issue for review. Austrian assets alone do not replace the determination of the applicable succession law.
The Succession Regulation first designates the law that is to govern succession on death. Under Article 20, that law may also be the law of a country outside the European Union. Article 34(1) provides that the law of that third country includes its conflict-of-law rules to the extent that they refer back or onward.
A reference back arises when the third-country law refers to the law of a Member State, such as Austria. An onward reference concerns a reference to another third country. These terms describe the route between legal systems. They do not yet answer whether the reference must be taken into account in the particular estate.
The review therefore has two levels. First determine the law initially designated by the Succession Regulation. Then identify the connecting factor used by that third country and the destination of its conflict rule. A factual connection with Austria is not a substitute for this analysis.
Under Article 34(1)(a) of the Succession Regulation, Austrian succession law may apply if the designated third-country law refers to the law of a Member State and that reference leads to Austria. The reference must follow from the foreign conflict rule. Austrian nationality, a former residence in Austria or assets in Austria do not produce that result on their own.
The review can be illustrated as follows. The deceased had their habitual residence in a third country. The Succession Regulation therefore initially designates that country’s law. Its conflict rule connects the succession in question with Austria. The next steps are to determine whether Article 34 makes that reference relevant and which Austrian rules then govern the succession questions.
The reference route must be assessed by reference to the time of death and the relevant legal position. Amendments to the third country’s law, different official versions and divergent interpretations can affect the result. The reasoning should therefore be recorded as a traceable chain.
Article 34(2) of the Succession Regulation excludes references back and onward when the applicable law was designated through Article 21(2), Article 22, Article 27, Article 28(b) or Article 30. In those situations the foreign reference must be disregarded. The exclusion list is therefore a separate review step.
Article 22 is especially important. If the deceased validly chose the law of the state of their nationality, that choice is not redirected to another legal system through Article 34. The validity and scope of the choice remain separate questions. The exceptional closer-connection rule in Article 21(2) also does not produce an effective reference back.
The other references in Article 34(2) concern specific conflict rules in the Regulation. Their inclusion is legally significant. It determines whether the foreign reference rule enters the analysis at all. Without this check, a statement about Austrian succession law remains incomplete.
The succession law answers questions about succession on death. Depending on the matter, these may include heir status, shares, compulsory portions and the position of legatees. The law governing an individual asset is a separate level. An apartment, bank account or business in Austria therefore does not prove that Austrian succession law applies.
The Succession Regulation contains special rules for certain assets. Article 30 concerns special provisions of the state in which particular immovable property, businesses or other assets are located, where those provisions apply independently of the succession law. Article 31 addresses the adaptation of rights in rem where the law of the Member State does not know the foreign right in question.
These provisions do not replace the Article 34 review. Conversely, an effective reference back to Austria does not automatically determine a land-register entry. The succession law, property law, registration law and the acceptance of an authentic instrument each require the appropriate legal basis.
In a third-country estate, secure the relevant rules of that country’s private international law in the applicable version. Add reliable information on how those rules are interpreted. A translation alone does not answer the question if a central term has a different meaning in the third country’s law.
The review should record habitual residence, nationality, any choice of law and the type of succession in chronological order. It should also state whether the third country refers to Austria, another Member State or a further third country. For an onward reference, establish whether the second third country would apply its own law.
A table with four columns is useful: designated legal system, conflict rule, specific reference and result of the Article 34(2) exclusion check. This makes it clear where evidence is still missing. Open factual issues should remain marked as open rather than being turned into a seemingly certain legal result.
If Article 34 makes the reference back effective and it leads to Austria, Austrian substantive succession law may be used for the relevant succession questions. Only then is it useful to assess which Austrian rules on intestate succession, dispositions on death or compulsory portions fit the facts.
A reference back does not automatically invalidate a will or inheritance contract. Formal requirements, interpretation, substantive validity and the effect of an authentic instrument have their own connecting rules. Jurisdiction also does not follow solely from the fact that Austrian law is ultimately applied.
The result should be recorded in three sentences: Which law does the Succession Regulation designate first? What does the third country’s conflict rule say? Why is the reference back or onward taken into account, or why is it excluded under Article 34? This structure supports the further review of the estate.
For the initial review, keep the will or inheritance contract, death certificate, information on habitual residence and nationality and any choice of law in one file. In a cross-border estate, residence changes before death should also be recorded with dates.
Secure the foreign conflict rules, reliable translations and documents concerning assets in Austria. If another third country is involved, add its rules and the basis for concluding that it would apply its own law. Organise the documents by legal system and date.
This collection does not replace an individual assessment. It provides the basis for separating the applicable succession law, choice of law, reference back and related issues. That separation matters when heirs from different countries are involved or when the parties have received conflicting views on the applicable law.
Article 34 Succession Regulation requires a traceable review of the entire reference route.
| Review question | Point of reference | Meaning under Article 34 Succession Regulation |
|---|---|---|
| Which law does the Regulation designate first? | Applicable law under Chapter III, such as habitual residence | That law may be the law of a third country |
| Does the third country refer to Austria? | Conflict rule of the designated third country | Austrian law may be considered under Article 34(1)(a) |
| Does it refer to another third country? | Onward reference under Article 34(1)(b) | The second third country must apply its own law |
| Is there an exclusion? | Article 21(2), 22, 27, 28(b) or 30 | The reference back or onward is disregarded |
| Which issues remain separate? | Jurisdiction, instruments and registration | Article 34 does not decide them automatically |
The third country’s applicable law and the facts of the estate must be supported by evidence.
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